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Forum Selection Bylaws: The Elephant in the Room

Forum selection bylaws are ostensibly designed to prevent the inefficiencies that arise out of the filing of multiple derivative actions in multiple jurisdictions. See North River Insurance Co. v. Mine Safety Appliances Co., --- A.3d --- n. 75 (Del. Nov. 6, 2014) ("In the corporate context, for example, much of the discussion has centered on ways in which corporations have responded to multi-forum litigation, such as the adoption of forum-relation charter or bylaw provisions.").  See also The Honorable Henry duPont Ridgely, Justice, Supreme Court of Delaware, The Emerging Role of Bylaws in Corporate Governance, ("Notwithstanding the policy of the Council of Institutional Investors against forum section clauses, the number of corporate boards that are adopting forum selection bylaws to avoid the risk of costly shareholder suits in multiple jurisdictions continues to grow.")  

While that certainly represents one basis for adopting forum selection bylaws, another is to ensure that the case is heard before a judiciary where the outcome is management friendly. 

In Wolst v. Monster Beverage, the issue was whether the inspection request should be denied because the underlying conduct that could result in a derivative action was outside the statute of limitations.  One issue discussed at the relevant hearing was whether the statute of limitations issue should be determined in an action under DGCL 220.  

In asserting that the issue should not be resolved in connection with the request to inspect, counsel for plaintiff had this to say: 

  • if a derivative case were brought, it could be brought in Delaware. It might possibly be brought in California state court or California federal court. While the law that would govern this case would be the exact same case, it would be Delaware substantive law because Monster is a Delaware corporation, there might or might not be different tolling practices or procedures or case law that a judge would refer to in that ultimate action. 

In other words, while the substantive law would remain the same, decision makers outside of Delaware might have a different view on the application of the law.  Forum selection bylaws, however, interfere with the ability of shareholders to select decision makers that may have this alternative perspective.  

For primary materials related to Wolst, go to the DU Corporate Governance web site.


The SEC and the Unexpected Role of the Founding Fathers

The American Association of Law Schools announced with great excitement that Mary Jo White, the current chair of the SEC, would be the inaugural speaker for the Showcase Speaker series. She is due to address the AALS on January 3, 2014.

From AALS description of Chair White, she should have some very interesting, indeed unique, observations to make. Here is what the AALS had to say

  • Join us at the inaugural AALS Showcase Speaker program with U.S. Securities and Exchange Commission Chair Mary Jo White. She is the only woman to hold the top position in the more than 200-year history of the SEC. She is also an experienced federal prosecutor and securities lawyer.  

The statement deserves a few observations. 

First, Mary Schapiro, who served as SEC Chair from 2009 through 2012 would be very surprised to learn that Chair White was the "only woman to hold the top position." In fact, Chair Schapiro was both the first permanent woman chair (2009) and the first temporary woman chair (1993). Elisse Walter, the second permanent woman chair, would also likely be surprised.    

Second, the SEC has a long and storied history but its roots do not go back 200 years. That would put the creation of the SEC in 1814, smack in the midst of the War of 1812. With Washington occupied that same year, the British burned the capital, something that would likely have prevented the creation of the SEC, even had it been contemplated. The founding father of the SEC is Franklin Roosevelt (the agency was created in 1934) not James Madison. The AALS notwithstanding, the SEC cannot tie its roots to the heroes of the Revolutionary War period.

The Chair will no doubt have interesting things to say, as always, but she won't be including any insights arising from her service as "the only woman to hold the top position" and she won't be including any thoughts on the "more than 200 year history of the SEC."    


Conflict Minerals: On We Go: Challenge to be Heard by Full Court

On November 18, the United States Court of Appeals for the District of Columbia agreed to reconsider the last ruling in the on-going dispute of Section 1502 of Dodd-Frank and the implementation of the SEC's conflict minerals rule (the “Rule”) (discussed here , here, and here). The full court granted a request for re-hearing made by the SEC and Amnesty International, which intervened on the side of the agency. Specifically, the re-hearing request argued that re-consideration was necessary in light of the ruling in en banc decision in American Meat Institute v. USDA, 2014 BL 208501 (29 CCW 252, 8/13/14), because that case “expressly overruled a portion of the panel's First Amendment opinion in this case.” Accordingly, “American Meat makes clear that panel or en banc reconsideration of the panel opinion is necessary."

Not surprisingly, the groups challenging the Rule, including the National Association of Manufacturers, the United States Chamber of Commerce and the Business Roundtable, said the American Meat Institute ruling should not change the outcome of the conflict minerals decision.


  • “Indeed, the en banc court specifically distinguished purely factual and uncontroversial disclosures, which may be permissible, from unconstitutional compelled speech about controversial matters, which is precisely what the Conflict Minerals Rule requires,” the statement said. “The Conflict Minerals Rule remains costly, counterproductive, and unconstitutional, and we will continue to oppose it in the courts, the SEC, and in Congress.” 


And so the fight goes on. The per curiam order of the Circuit Court directs the parties to file supplemental briefs addressing the following specific questions related to the First Amendment issue:

(1) What effect, if any, does this court’s ruling in American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc), have on the First Amendment issue in this case regarding the conflict mineral disclosure requirement?

(2) What is the meaning of “purely factual and uncontroversial information” as used in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), and American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc)?

(3) Is determination of what is “uncontroversial information” a question of fact?

No date has been set yet for the rehearing at the appeals court.


Judicial Rewriting of Inspection Rights: Wolst v. Monster Beverage Corp. (Part 3)

We are discussing Wolst v. Monster Beverage, an action brought under DGCL 220.  

The case is both inconsistent with the purpose of Section 220 and inconsistent with prior Delaware law. 

The Shareholder sought to engage in the inspection to obtain the underlying documentation that addressed the special committee’s recommendation to deny the litigation request. The court, however, recast the purpose as the desire to obtain the information needed to bring a derivative suit.    

  • In summary, Wolst “has articulated no stated purpose other than to investigate wrongdoing in order to bring [her derivative] suit against [Monster's insiders who traded on nonpublic information], and [Wolst] is time-barred from bringing that suit.” Accordingly, because the derivative action contemplated by Wolst would be time-barred and because no other purpose has been identified, she has failed to prove a proper purpose, an essential element of her case under Del. C. § 220.   

There is little doubt, as is often the case, that Shareholder sought books and records to assess the viability of a derivative suit. The requirement of a “proper purpose” does not, however, turn on the ultimate use of the documents but on the purpose of the inspection. For that, shareholders need only have a purpose that is “reasonably related to such person's interest as a stockholder.” 

Obtaining insight into the special committee's investigation regarding allegations of insider trading and the reasons for the denial of the litigation request could have provided useful information in a number of respects. The information may have resulted in Shareholder deciding not file a suit but instead negotiating with management over a stronger policy concerning insider trading. The actions of the special committee and the board could have cast light on the competency of directors, influencing future voting decisions by Shareholder. In other words, the information was potentially useful to Shareholder irrespective of the filing of a derivative suit.

None of these possible uses mattered in the court's analysis. Instead, the court essentially found the documents sought in the inspection request had only a single purpose: use in a possible derivative suit. While it is true that Shareholder indicated this as a goal, the reality is that only after completion of the inspection could Shareholder decide on the the appropriate next step, only one of which would have been the filing of a derivative suit. The idea that the inspection might have resulted in no litigation and generated useful dialogue between Shareholder and management was not something the court even considered (or encouraged).  

Moreover, the analysis effectively whipsaws shareholders in inspection rights cases. In other instances, shareholders have seen their requests to inspect dismissed because they wanted to use the documents in a derivative suit. In Central Laborers Pension Fund v. News Corporation, No. 6287-VCN, 2011 WL 6224538 (Del. Ch. Nov. 30, 2011) (aff'd on other grounds), the Chancery Court effectively found that shareholders lacked a proper purpose because shareholders had sought to inspect only after filing a derivative suit. The court viewed the use of inspection rights as a substitute for discovery as not a proper purpose.  

So if shareholders want documents to advance a derivative claim, they risk dismissal. This encourages the invocation of a purpose that is broader than simply promoting a derivative suit. Yet as Wolst shows, even where a broader purpose is alleged, courts are open to simply recharacterizing the purpose as promoting a derivative suit and using that as a basis for dismissal.     

Primary materials on this case, including the opinion of the Vice Chancellor, can be found at the DU Corporate Governance web site.


Judicial Rewriting of Inspection Rights: Wolst v. Monster Beverage Corp. (Part 2)

We are discussing Wolst v. Monster Beverage Co., a case brought under DGCL 220.  

The case arose out of insider trading allegations that occurred in 2007. A derivative action over the behavior was filed in 2008 and a shareholder ("Shareholder") intervened. The action was dismissed in 2011 for the failure to establish demand futility. In 2012, Shareholder demanded the board "(i) investigate possible violations of law; and (ii) commence a civil action against the officers of the Company for the misconduct identified." Verified Complaint, at 20.

The board then formed a special committee. On October 19, 2012, Shareholder was notified that her demand had been rejected. In March 2013, Shareholder filed a request for inspection. The purpose was identified as:  

  • (1) “[e]valuating the Board's refusal to act on [her] litigation demand and whether that refusal constituted a reasonable and good-faith exercise of the Board's business judgment” and (2) “[e]valuating the process by which the Board decided to refuse to act on [her] litigation demand.”  

In effect Shareholder wanted documents to determine whether the board had an adequate basis for refusing her demand. As part of that, Shareholder presumably expected to obtain information on the investigation into the alleged misbehavior, thus allowing her to determine the steps taken by the board other than the refusal to engage in litigation.   

Of course, one result was the possibility that Shareholder would file suit to challenge the decision to refuse the litigation demand. Indeed, Shareholder conceded “that her ultimate goal in pursuing her books and records request is ‘to determine whether there is a basis to bring a derivative suit’ based on the ‘wrongs alleged in’ the earlier derivative action.” The court described the “end game” as a derivative suit.  

The company asserted that any derivative claim based upon the allegations from 2007 were barred by the statute of limitations. Such a defense did not automatically bar an inspection. As the court noted:  

  • A potentially viable affirmative defense to an anticipated derivative claim will not necessarily defeat a books and records effort. Sometimes developing the record to withstand possible affirmative defenses requires more effort than is practicable for a books and records action. Sometimes conduct that cannot be challenged because of a time-barr defense can, nevertheless, inform consideration of other potentially wrongful conduct that is not yet time-barred.    

Nonetheless, this is not always the case.  

  • There is, however, “the possibility that, in a specific factual setting, a time bar defense . . . would eviscerate any showing that might otherwise be made in an effort to establish a proper shareholder purpose.” The challenged trading activities occurred in 2006 and 2007. [Shareholder] does not identify any more recent potentially wrongful conduct that could provide a basis for a derivative action. Without some elaboration upon what she would do with the requested books and records in her capacity as a stockholder, the burden of producing books and records that Section 220 imposes upon the corporation should be avoided in this instance. In sum, consideration of a time-bar defense to the contemplated derivative action is appropriate in this “specific factual setting.”  

Shareholder challenged the court's decision to resolve the statute of limitations issues (resolving such issues as the application of laches) in a 220 hearing. Nonetheless, the court found the statute of limitations applied and, therefore, Shareholder lacked a proper purpose.  

Primary materials on this case, including the opinion of the Vice Chancellor, can be found at the DU Corporate Governance web site. 


Judicial Rewriting of Inspection Rights: Wolst v. Monster Beverage Corp. (Part 1)

When it comes to inspections rights, shareholders in Delaware, for the most part, cannot win.  

Section 220 of the Delaware General Corporation Law provides shareholders with inspection rights. The provision imposes some process requirements (the request has to be in writing) and requires a proper purpose.

The Delaware courts have, however, used this simple statutory framework to throw up a substantial number of barriers that effectively deny shareholders access to corporate books and records.   

First, the "form and manner" requirements are to be interpreted narrowly, even in circumstances that seem to defy common sense. See Cent. Laborers Pension Fund v. News Corp., 45 A.3d 139 (Del.  2012).   

Second, the courts have grafted onto Section 220 a requirement that shareholders provide a "credible basis" for any proper purpose alleged. In effect, this requires shareholders to find affirmative evidence of mismanagement in the public domain, a standard often difficult to meet given the process nature of most fiduciary duty claims.  

Third, the statute requires shareholders to have a “proper purpose” for inspecting any records. Although the statute provides that this is any purpose “reasonably related” to a shareholder's interest, the courts have, for the most part, defined a proper purpose only as corporate waste, mismanagement, or other wrongdoing. It is as if the only interest shareholders have in the assets they own is whether management engaged in improper behavior. 

In Wolst v. Monster Beverage Corp. the Chancery Court added another barrier. The court essentially found that the purpose was less relevant than that intended use of the materials. Although the shareholder seeking the right to inspect had what would seem, on its face, a proper purpose (to understand why a special committee denied the demand request), the court found the intended use was a derivative suit. Because the derivative suite was barred by the statute of limitations, the court denied the right to inspect.

We will discuss this case in the next several posts.

Primary materials on this case, including the opinion of the Vice Chancellor, can be found at the DU Corporate Governance web site. 


Securities and Exchange Commission v. Braverman: SEC Seeks Emergency Asset Freeze  

The Race to the Bottom previously posted on the complaint filed by the Securities and Exchange Commission (“SEC”) against Dmitry Braverman (“Braverman”), alleging that Braverman made $300,000 in illicit profits from an insider trading scheme. This post examines the SEC’s motion for an emergency asset freeze. The SEC argued for emergency relief to prevent Braverman and relief defendant Vitaly Pupynin (“Pupynin”) from moving the allegedly illicit assets out of the reach of the SEC and the courts.

In a memorandum of law filed on September 17, 2014 (the day after the complaint was filed), the SEC set forth arguments supporting its emergency application for an order freezing the assets of both Braverman and Pupynin, repatriating the assets that were moved abroad, and prohibiting Braverman and Pupynin from destroying documents.

The SEC argued it could meet the standard required to obtain a freeze of Braverman’s assets; that standard requires it to show “either a likelihood of success on the merits, or that an inference can be drawn that the party has violated the federal securities laws.”

First, the SEC argued it will likely win its Section 10(b) and Rule 10b-5 insider trading claims against Braverman, and “at a minimum, an inference can be drawn that Braverman violated those provisions.” Second, the SEC argued it will likely win its claims under Section 14(e) and Rule 14e-3, which address instances of insider trading involving tender offers. The SEC alleged Braverman had begun moving his assets out of the reach of the SEC and the court, and argued a freeze is necessary to ensure the SEC will be able to collect any final judgment it obtains. According to the SEC, Braverman may ultimately be liable for more than $1.2 million, including disgorgement, prejudgment interest, and penalties.

Additionally, the SEC argued it could also meet the standard required to obtain a freeze of Pupynin’s assets; that standard requires the SEC to show Pupynin “(1) has received ill-gotten funds; and (2) does not have a legitimate claim to those funds.” Pupynin, named as a relief defendant, is a close relative of Braverman and a resident and citizen of Russia. The SEC alleged Braverman used brokerage accounts in Pupynin’s name and illicit profits were wired to bank accounts in Pupynin’s name.

The SEC also sought an order repatriating the illicit profits Braverman and Pupynin had already moved abroad. The SEC alleged that some of Braverman’s illicit profits have already been wired to a bank account in Latvia and repatriation was necessary to effect the asset freeze.

The SEC additionally sought to prohibit Braverman and Pupynin from altering, destroying, or concealing any documents.

The primary materials for this post can be found on the DU Corporate Governance website at: Plaintiff Securities and Exchange Commission’s Memorandum of Law in Support of its Emergency Application for an Asset Freeze and Other Relief, Sec. & Exch. Comm’n v. Braverman, No. 1:14-CV-07482-RMB (S.D.N.Y. Sept. 17, 2014).


JOBS Act Isn’t Effective According to Academic Study Findings

Jumpstart Our Business Startups Act (“JOBS Act”) was signed into law in April 2012 with the intent of reducing the cost and regulatory burden for small firms seeking to raise capital in both private and public markets. The JOBS Act provides for a stream-lined initial public offering (“IPO”) process for a new type of company called “emerging growth company” (“EGC”).

An EGC generally includes companies with less than $1 billion in revenues in the most recently completed fiscal year. Title I of the JOBS Act creates a so-called IPO “on-ramp” designed to lower the cost of raising capital. The “on-ramp” reduces the mandated disclosure and compliance obligations for EGCs during the IPO process and the first few years as a public company. A recent academic study indicates, however, that these goals are not being achieved.

A study examined 213 EGC IPOs that occurred between April 2012 and April 2014. See “The JOBS Act and the Costs of Going Public.” According to the study’s findings, there is little evidence that the JOBS Act effectively lowered the cost or increased the volume of IPOs.

The study found “no evidence” that EGC status resulted in a reduction of “direct costs of issue, such as accounting, legal, or underwriting fees.” In addition, the “lower mandated disclosure” resulted in less transparency and greater underpricing (an offering price significantly lower than the price of the first trade). 

The study indicated, however, that greater underpricing was present only for larger firms that were “newly eligible for reduced disclosure and delayed compliance.” As for smaller companies, the study found “no evidence” that they experienced “any change in their cost of capital.” Overall, the study concluded that the JOBS Act did little, if anything, to increase the number of IPOs. The lack of increase in overall IPO volume is consistent with the findings that the benefits of the JOBS Act are outweighed by higher costs of capital.


Delaware and the Consequences of an Excessively Management Friendly Approach to Corporate Governance (Part 2)

The notion that Section 109 permitted bylaws that regulated judicial (or presumably regulatory) process opened the door to bylaws that went well beyond those that shifted fees. 

Nothing in the analysis prohibited a company from adopting a bylaw that, for example, imposed fees on shareholders that submitted an unsuccessful proposal under Rule 14a-8. 

Nothing in the analysis prevented the adoption of a bylaw that shortened the time period for a shareholder to answer a counterclaim. None of these areas truly involved the internal affairs of a corporation and were, therefore, beyond the realm of regulation in bylaws. Yet Delaware imposed no such limit.   

The results of this approach can be seen from the bylaw adopted by Imperial Holdings. Rather than adopt a fee shifting bylaw, the company adopted a bylaw that restricted derivative actions by shareholders by imposing a minimum ownership threshold to bring an action. As the provison provides:

  • Representative Claims. Except where a private right of action at a lower threshold than that required by this bylaw is expressly authorized by applicable statute, a current or prior shareholder or group of shareholders (collectively, a “Claiming Shareholder”) may not initiate a claim in a court of law on behalf of (1) the corporation and/or (2) any class of current and/or prior shareholders against the corporation and/or against any director and/or officer of the corporation in his or her official capacity, unless the Claiming Shareholder, no later than the date the claim is asserted, delivers to the Secretary written consents by beneficial shareholders owning at least 3% of the outstanding shares of the corporation as of (i) the date the claim was discovered (or should have been discovered) by the Claiming Shareholder or (ii), if on behalf of a class consisting only of prior shareholders, the last date on which a shareholder must have held shares to be included in the class.

The provision applies to derivative actions but also apparently applies to federal class action lawsuits under the federal securities laws (since these are brought against the corporation). Moreover, the provision breaks new ground by providing that, as a condition for filing a law suit in state or federal court, plaintiffs must deliver proof of ownership to the company. 

According to the company's press release, the bylaw was designed to "ensure that any shareholder filing a lawsuit on behalf of the company or a class of shareholders has a minimum degree of shareholder support and adequately represents shareholders' interests." The company indicated that the bylaw would be submitted "to shareholders for ratification at the next annual meeting." As the release set out:  

  • Phillip Goldstein, Imperial's chairman and a principal of Bulldog Investors, its largest shareholder commented: "The Board has noticed a disturbing trend of lawsuits brought by shareholders with very small stakes in publicly traded companies against the companies, their directors, and their officers, purportedly on behalf of a class of shareholders or on behalf of the company. These lawsuits often result in other shareholders receiving no meaningful benefit and indirectly incurring the cost of the plaintiff's lawyer and the company's lawyer. The Board believes it is in the best interest of the company to require a shareholder claiming to represent a class of shareholders or the company to demonstrate a minimum level of shareholder support."

This provision may not survive a judicial challenge (it should cause significant pause even in Delaware). The courts will likely take a dim view of limits on their jurisdiction that take the form of mandatory filings with the corporation. Moreover, the bylaw effectively eliminates the right of small shareholders to bring derivative and securities class action law suits, at least for shareholders and former shareholders who lack the resources needed to obtain the necessary consent.    

Nonetheless, the bylaw demonstrates the consequences of an approach taken by Delaware courts that authorized bylaws affecting judicial process. It suggests that companies will use this new found discretion to adopt a wide variety of bylaws that seek to restrict access to the courts. Moreover, these bylaws impose costs. In marginal cases, shareholders may not bring actions. In other instances, they raise the costs associated with litigation, either through the need to assemble a 3% block or through the need to challenge the validity of the bylaw.   

There are two ways out of this quagmire. First, the Delaware courts can impose meaningful limits on these types of bylaws. The idea that anything goes under Section 109 could and should be revisited and serious limits imposed on bylaws that effectively restrict access to the courts. While the Delaware courts will probably impose some limits eventually, there is no reason to believe that they will be meaningful.  

The other way out is through federal preemption. Congress can have, at the ready, a provision that prohibits bylaws that interfere with judicial process. The law ought to apply to all public companies (the say on pay model) but could also be applicable to exchange traded companies (the audit/compensation committee approach). In any event, the management friendly approach taken by the Delaware courts with respect to these bylaws invites further federal preemption, an unfortunate but obvious consequence of the interpretation. 


Delaware and the Consequences of an Excessively Management Friendly Approach to Corporate Governance (Part 1)

As we have noted before on this Blog, there was a time when the Delaware courts, albeit always management friendly, occasionally made decisions favorable to shareholders.  Van Gorkom and Unocal are two examples.  Those days are over. 

A bylaw friendly to shareholders that sought reimbursement for shareholders who successfully elected a director?  Struck down.  A bylaw favorable to management forcing shareholders to litigate cases in a designated forum (mostly Delaware), upheld.  Inspection rights denied because documents were going to be used in litigation (see the lower court case in Central Laborers Pension Fund v. News Corp); inspection rights denied because documents could not be used in litigation (due to the statute of limitations) (Wolst v. Monster Beverage).  

Cases that benefited shareholders in the past (Blasius) are under attack and not likely to survive much longer.  Standards in mergers with controlling shareholders have been weakened, with entire fairness replaced in some cases by the business judgment rule.  Process continues to replace substance yet the process is given little meaning (except perhaps in Vice Chancellor Laster's courtroom). 

The most obvious consequence of this approach has been efforts by shareholders and investors to seek reform in other forums.  For the most part, this has meant appeals to, and preemption by, Congress.  Congress intervened and set standards for audit and compensation committees of the board.  Congress intervened and required a shareholder vote on compensation (say on pay) and mandated that boards seek clawbacks of certain performance based compensation in the event of restatements.  Congress has begun to impose qualifications on directors, essentially requiring the presence of a financial expert.  

In preempting state law, Congress has used a variety of methods.  In the case of say on pay, the requirement was imposed on all public companies (those registered under Section 12(g) of the Exchange Act).  In the case of audit and compensation committees, Congress did so through the imposition of mandatory listing standards.

All of these areas were traditionally matters of state law.  No longer.  Which brings us to bylaws designed to limit judicial process.  Bylaws in general regulate the internal affairs of a corporation.  They can adjust the relationship between shareholders and managers.  Fee shifting bylaws, however, do not fall into this category.  First, they are not limited to cases arising out of the internal affairs of a corporation but generally apply to any action against the company or the board.  Second, they are not limited in application to shareholders but generally apply to a broader category of plaintiffs.

Yet in addressing these provisions, the Delaware Supreme Court engaged in a simplistic, management friendly analysis of Section 109.  The Section permits bylaws that are "not inconsistent with law or with the certificate of incorporation, relating to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees".  From the Court's perspective, nothing in the language prohibited a bylaw that regulated judicial process.

As we will see in the next post, the door opened by the Delaware court is quite wide.  It has the potential to alter the rights of shareholders and investors by limiting their rights to challenge behavior in court.  We will discuss the implications of this approach and an example of the door being pushed open even wider in the next post.  


The Meaningful Return of Shareholder Access (Part 3)

The effort at private ordering instigated by the NYC Comptroller through the Board Accountability Project ought not to have been necessary. 

In 2010, the Commission adopted a rule requiring public companies to offer access to their proxy statement to 3% shareholders who held the shares for at least three-years. See Exchange Act Release No. 62764 (Aug. 25, 2010). Had that rule been left in place boards would probably already be more diverse, compensation would be less extreme, and climate change would have a higher profile in the governance process.

Nonetheless, the rule was not allowed to go into effect, having been struck down by the DC Circuit on process grounds. The court relied on a questionable interpretation of the arbitrary and capricious standard. In contrast to what is required in these sorts of cases, the court gave almost no deference to agency interpretation and adopted a view of cost-benefit analysis that exceeded the bounds of all prior interpretations. See Shareholder Access and Uneconomic Economic Analysis: Business Roundtable v. SEC.  

The weakness in the analysis used by the opinion was made abundantly clear by the recent study produced by the CFA Institute on shareholder access. See Proxy Access in the United States: Revisiting the Proposed SEC Rule. According to the Study: 

  1. Limited examples of proxy access and director nominations globally, coupled with the limited availability of corresponding market impact data, challenge whether a more detailed cost–benefit analysis was possible in the context of the court’s decision.
  2. The results of event studies suggest that proxy access has the potential to enhance board performance and raise overall U.S. market capitalization by between $3.5 billion and $140.3 billion.
  3. Assessing and measuring increased board accountability and effectiveness is challenging. None of the event studies indicate that proxy access reform will hinder board performance.

In short, there is little evidence that access was harmful and significant evidence that it benefited shareholders. Likewise, the Study suggested that there was little to be gained by an even more extensive cost-benefit analysis. 

The CFA Study likewise expands the analysis by taking the discussion out of the realm of theory and into realm of actual practice. The Study noted that shareholder access is already a fixture in countries such as the UK, Australia, and Canada. The actual experience of these countries is available to shed light on the role access plays in the governance process. The data shows modest use; according to the CFA Study:

  • We found that over the past three years, proxy access has been used only once in Canada to nominate directors to a board (where it was used successfully). In Australia, proxy access was used 11 times in the past three years, only once successfully. In the United Kingdom, proxy access was used 16 times over the past three years; it was successful on 8 occasions and was defeated 6 times, and nominees’ names were withdrawn on 2 occasions. These data suggest that proxy access is a rarely used shareowner right that is typically used only when other outlets for shareowner concerns about a company or its board—such as engagement between shareholders and companies—have been exhausted or have otherwise proved unfruitful.

Add to this data the fact that a number of companies in the United States now have access provisions in place and none have apparently been used. 

All of this suggests that access will not be particularly disruptive and will benefit companies by better focusing directors on the interests of shareholders. Given these conclusions, perhaps the time has come for an end to private ordering and a reexamination of the need for rulemaking to make access a more categorical part of the governance landscape.     


The Meaningful Return of Shareholder Access (Part 2)

In the aftermath of the Business Roundtable, shareholder access has largely been left to private ordering. A number of shareholder proposals have been submitted to public companies asking management to provide shareholders with access to the proxy statement.  A number have received majority support, although the numbers have been modest.    

This may change, however, with the advent of the Board Accountability Project.  Spearheaded by the NYC Comptrollers Office, the Project involves the submission of shareholder access proposals to 75 separate public companies.  The list of companies is here.  

Each of the proposals calls on companies to provide shareholders owning 3% of the voting shares for at least three years with the right to include a short slate of directors (not more than 25% of the number then serving) in the proxy statement.  The proposals largely mimics the requirements of the SEC rule struck down by the DC Circuit in Business Roundtable.   

A significant number will likely receive majority support.  This is the case for a number of reasons.  First, most will go to a vote.  These proposals are difficult to exclude from the proxy statement.  As a memo from Wachtell noted:  "The current wave of proxy access proposals has evolved to cure most substantive vulnerabilities and, absent procedural defects, the SEC has generally been unsympathetic to proxy access exclusion requests."

Whole Foods is seeking to demonstrate otherwise.  The company has sought no action relief, arguing that an access proposal (permitting shareholders owning 3% for 3 years) should be excluded because it has submitted an alternative (permitting shareholders owning 9% for five years).    

As a result, companies will likely be able to avoid a shareholder vote on an access proposal only if they prevail on the NYC Comptroller to withdraw the proposal.  That in turn will presumably require concessions by the company.  

Second, the category of companies have been carefully selected.  The companies receiving the proposals fell into three categories.  As the Comptroller's Office described, they included:

  • 33 carbon-intensive coal, oil and gas, and utility companies;
  • 24 companies with few or no women directors, and little or no apparent racial or ethnic diversity; and
  • 25 companies that received significant opposition to their 2013 advisory vote on executive compensation (“say-on-pay”)

These are not a particularly sympathetic group of companies.  Take diversity (or the lack thereof).  Given the number of qualified women and ethnic/racial minorities, it is not convincing claim to contend that a lack of diversity can be explained by an inadequate pool of candidates.  Instead, other reasons likely explain the absence of such candidates, not the least of which is the preference for directors who will reliably support management.  See The Demythification of the Board of Directors.  

Third, the Project already has significant support, particularly from other large institutional investors. According to the NYT, CALPERS has already signed on:   

  • Working with Mr. Stringer’s office to drum up support are officials at the California Employees' Retirement System, the nation’s largest public pension fund.  Calpers said it would hire a proxy solicitor to discuss the proposal with other institutional shareholders. “We view this as a five-year project and will be back again and again as needed,” said Anne Simpson, senior portfolio manager and governance director at Calpers. “But making the commitment and getting an alliance formed on this issue is so important.”

Other public pension plans "supporting the effort" include plans from Connecticut, Illinois and North Carolina.  

Fourth, these proposals have proven popular.  Last week, for example, an access proposal at Oracle received about 45% of the vote (1,578,053,610 shares in favor; 1,946,813,794 shares against).  The percentage was even more significant given that Larry Ellison held 26% of the shares and presumably voted against the proposal.  As CALSTRS (a joint sponsor of the proposal) stated: 

  • Independent shareholders overwhelmingly supported CalSTRS’ proposal opening the corporate proxy to shareholder candidate nominations for the Oracle Corporation Board of Directors. While it received approximately 45 percent of the overall vote, it did not pass due to Larry Ellison’s large inside ownership. However, CalSTRS believes shareholders today sent a strong signal to the board of directors and we expect more accountability from them, as a result.

These efforts are likely to renew interest in shareholder access.  Ultimately, however, private ordering is not the best way to approach this issue.  The proxy statement is a corporate document that ought to be available for nominees from both management and shareholders.  For that, SEC rulemaking will be necessary.   


The Meaningful Return of Shareholder Access (Part 1)

Directors are not chosen by shareholders.  In the case of most public companies, shareholders can only vote for a single slate of directors in something that resembles an old style Soviet election.  The decision as to who gets to serve on the board, therefore, is made not when shareholders vote but when the slate submitted to shareholders is selected.  The slate is invariably determined by the board, with input (explicit or implicit) from the CEO.  (For a discussion of this influence, see The Demythification of the Board of Directors).  The result is a system whereby directors seeking to remain on the board have greater incentive to side with management than with shareholders. 

Assorted reforms designed to ensure greater board independence and orientation towards shareholders have been tried.  The definition of director independence at the stock exchanges (but not Delaware law) has been tightened.  Listed companies must have a nominating committee that consists only of independent directors.  Nonetheless, these approaches have largely failed.  Id.  The definition of director independence does not ensure independence in fact.  Nominating committees may consist of independent directors but they can still consult with management and accept their nominees.

The one reform that did have the potential to work, however, was shareholder access.  (for a history of the SEC's efforts in this area, see The SEC, Corporate Governance, and Shareholder Access to the Board Room) as a rule by the SEC, shareholder access allowed large shareholders (or groups of shareholders) to submit a minority of directors for inclusion in the company's proxy statement.  Shareholder access made it more cost effective to run nominees not selected by incumbent management.  Access also had the potential to more closely focus directors on the interests of shareholders in order to avoid the submission of competing nominees.

The SEC's shareholder access rule was struck down by the DC Circuit on administrative grounds.  (for a discussion of the case and the weak reasoning, see Shareholder Access and Uneconomic Economic Analysis: Business Roundtable v. SEC).  The opinion was poorly reasoned and had the appearance of a result oriented decision.  Nonetheless, the decision eliminated the SEC's categorical rule on the subject. 

Since then, shareholder access has been a matter of private ordering, with shareholders submitting a modest number of proposals at specific companies calling for access.  A number received majority support.  Nonetheless, its safe to say that for the most part, shareholder access was not at the forefront of investor concerns, probably more a result of exhaustion than disinterest.

As we will discuss in the next post, that is about to change. 


American Meat Institute COOL Rehearing Request Denied

On Oct. 31, the United States Court of Appeals for the District of Columbia Circuit denied a request for a rehearing on a motion for preliminary injunction to block implementation of the United States Department of Agriculture’s May 2013 final rule on country-of-origin (COOL) labeling for red meat. The rehearing request focused on the provisions of the rule prohibiting the commingling of meat, arguing that the requirement exceeded the authority of the Agricultural Marketing Service (AMS). That issue was not addressed by the en banc panel that decided American Meat Institute v. USDA (discussed here).

In a statement, AMI Interim President and CEO James Hodges noted “[t]he ban on commingling, which was the subject of this rehearing request, is a key component that made the 2013 rule even more onerous and burdensome than the previous rule, as was confirmed by the World Trade Organization’s recent report.” He also said, “The court’s refusal to rehear our motion will allow those harms to continue. We will evaluate our options.”

The challenge is all the more interesting because the World Trade Organization ruled last month, for the second time, that the United States has not done enough to fix the COOL law. Specifically, the WTO compliance panel found that the rule was less favorable to meat imports from Canada and Mexico and more favorable to domestically produced meats.

The Obama administration has 60 days to decide whether to appeal the ruling. In the interim, the COOL Reform Coalition, a group of agriculture interests said in a letter to Congress that if Mexico and Canada retaliate it could cost U.S. businesses billions of dollars in lost sales. The COOL Reform Coalition, said tariffs could be slapped on $1.3 billion in Iowa exports, with pork, corn, and soybeans among some products expected to be targeted.

"We request that Congress immediately authorize and direct the secretary of agriculture to rescind elements of COOL that have been determined to be non-compliant with international trade obligations by a final WTO adjudication,” the letter said.

Such action seems unlikely in light of a recent statement from Sen. Chuck Grassley, R-Iowa, and Sen. Tim Johnson, D-S.D. who said Congress should wait to see how the Obama administration responds. Grassley, a member of the Senate Agriculture Committee, said he did not believe Congress would do anything until the Agriculture Department and the United States trade representative decide if they will appeal the decision at the WTO. "We'll have to wait and see if the White House believes there is anything else that can be done administratively to bring COOL into compliance," Grassley said.

Why is this of any interest to corporate lawyers?  Recall that part of the initial challenge to the COOL law was that it improperly compelled corporate speech in violation of the First Amendment. That argument was rejected by the DC Court of Appeals who extended the rationale expressed in Zauderer v. Office of Disciplinary Counsel, to apply rational review to compelled corporate speech aimed at more than preventing consumer deception. The WTO’s objections to the COOL law is that it doesn’t not go far enough—that it does not provide sufficient information to consumers. If the United States does not appeal the WTO ruling, and instead attempts to amend the COOL law to address the WTO concerns by requiring more disclosure, we may see an opportunity to again explore the contours of compelled corporate speech, an issue with ramifications far beyond the meat industry.


Fee Shifting Bylaws and Senator Blumenthal

Senator Blumenthal sent a letter to the Chair of the SEC, Mary Jo White, calling on the SEC to take steps with respect to the implementation of fee-shifting bylaws. The letter described a number of negative ramifications that could arise from the bylaws. 

  • The potential ramifications from this decision are immense. No rational investor, even with significant financial interests at stake and when presented with clear evidence of corporate misconduct, will brave litigation when the corporate defendant can force the investor to face financial ruin unless he substantially wins on every point. While ATP Tour only affects corporations headquartered in Delaware, Delaware is home to many of the country’s largest public companies. Further, the Delaware Supreme Court’s action is already beginning to have a ripple effect in other jurisdictions, leading other state courts to reconsider longstanding doctrine in this area. 

The letter likewise called on the SEC to act.     

  • I call upon the Commission to commence investigation of Alibaba Group Holding, Ltd., one of several companies that have elected to include fee-shifting provisions in their governing documents but failed to disclose it in offering statements. The SEC should label such provisions as major risk factors and require corporations to publicly disclose them before any initial public offering. More broadly, the SEC should clarify that fee-shifting provisions are inconsistent with federal securities law. At a minimum, I urge the SEC to refuse to permit registration statements to move forward for any company that includes these provisions in violation of our federal securities laws.

The letter seeks to pressure the SEC to take steps to minimize the impact of these bylaws. Even if the SEC takes the steps suggested by Senator Blumenthal, the bylaws may still proliferate, albeit in a more limited manner (applicable, for example, only to derivative suits).  

A permanent solution could come from Delaware, with the courts or the legislature rejecting the applicability of the bylaws to for profit companies. To the extent that this does not occur, the issue will likely represent a candidate for federal preemption.    


Omnicare and Oral Argument at the Supreme Court

The Supreme Court heard oral argument on the Omnicare case yesterday.The primary issue was whether an opinion could be false absent allegations of subjective disbelief.  I was counsel of record on a brief on behalf of law and business faculty who argued that the statement at issue was not an opinion. For a copy of the brief, go here.  

One of the statements alleged to be false stated that:  "We believe that our contracts with pharmaceutical manufacturers are legally and economically valid arrangements".  The complaint alleged that the statement was false "when made."  

In part, the case raises the issue of whether a statement in a registration statement prefaced by "we believe" amounts to an opinion.  The issue came up during oral argument came up as evidenced by the following colloquy:   

  • CHIEF JUSTICE ROBERTS:  So if I say or the company says in a prospectus, we believe that we have 3.5 million units of inventory in our secret inventory warehouse, so long as they say we believe, they can't you know, it turns out they have none, that's all right?  They're still protected?
  • MR. SHANMUGAM:  I think that that would probably be a statement of opinion, but it is much closer to the line between statements of opinion and statements of fact.  Let me explain
  • CHIEF JUSTICE ROBERTS:  Really, you think it's an open question if they say it's a very precise number for something that only they know anything about, and it's wildly off, you think they're protected or may be simply by saying "We believe"?
  • MR. SHANMUGAM:  Well, I ­­ I think that ­­the reason why I think it's a close question as to whether or not that would be a statement of opinion is simply because the second restatement's definition of  what constitutes a statement of opinion, which we think is a useful guide, includes not just statements on matters of judgment, like the statements we have at issue here, but also statements that express uncertainty about factual matters.  And I think in your hypothetical, Mr. Chief Justice, you can view that statement as being the equivalent of a factual statement that along the lines of, we have approximately 3 million units or widgets in our inventory, such that if they had nowhere near that, that statement would be an objectively false statement of fact and, therefore, actionable.

The oral argument primarily focused on whether an opinion subjectively believed was required to have a "reasonable basis," something the Government asserted (as did the law faculty brief).  While opinions are difficult to predict, there seems to be a clear majority for the proposition that opinions issued by the company in a Section 11 context must have some support.  

The only question is whether the Court will find that an opinion can be false if subjectively believed but lacking in a reasonable basis or if the lack of a reasonable basis is prima facie evidence that the opinion was not subjectively believed.  The two positions are not equal.  Note the following colloquy between counsel for Petitioner and Justice Alito:   

  • MR. SHANMUGAM:  But, again, our view is that for purposes of pleading a claim, a plaintiff is not restricted to smoking gun evidence that the speaker did not possess the stated belief.  And so, again, if a plaintiff is able to come forward with allegations that cross the pleading threshold of plausibility to suggest that the speaker, in fact, did not hold the stated belief, that will, in fact, be sufficient. 
  • JUSTICE ALITO:  Well, that may be true, but do you deny the fact that there can be situations in which a person makes a ­­ makes a statement of belief and believes that to be true, but lacks a reasonable basis for stating the belief?  There is a difference between those two situations, isn't there?  
  • MR. SHANMUGAM:  I think there is a difference between those two situations, and I think this illustrates an important conceptual distinction.  I think in a case where a speaker has no basis whatsoever for the stated belief, there will be comparatively few cases ­­ and I'm certainly not aware of any case from the reported cases in this area ­­ where the speaker held the stated belief but lacked any basis for it whatsoever.

The other issue was whether the adoption of the reasonable basis standard for opinions subjectively believed required reversal of the 6th Circuit opinion.  While the outcome is difficult to predict, the tenor of the opinion was that the Justices would opt for something like the reasonable basis standard (there was discussion about the precise formulation of the standard) and probably send the case back to the 6th Circuit to apply the standard (and to determine whether it had been sufficiently alleged).  

Our prediction?  A substantive victory for Respondents (opinions can be subjectively believed but still false) but a reversal of the 6th Circuit's decision.   


The SEC and Structured Data (Part 2)

We are discussing the recent speech by Mark Flannery, the new director of DERA.  See The Commission’s Production and Use of Structured Data, Data Transparency Coalition’s Fall Policy Conference, Washington, DC, Sept. 30, 2014 

Of interest was the discussion of "Inline XBRl."  Inline allows for the incorporation of XBRL tags into the HTML formatted document.  As a result, companies do not need to submit an HTML version and a separate file that contains the financial statements using XBRL.  Mark Flannery had this to say about Inline: 

  • DERA staff is working with outside contractors on “Inline-XBRL.” Consistent with its name, this new technology would allow companies to integrate (or embed) the XBRL tagging of the financial statements directly into their standard HTML formatted 10-K and 10Q filings.  This effectively eliminates the need to reconcile separate HTML and XBRL versions of the financial statement content, thus reducing the possibility of rekeying or similar errors.  Work is also proceeding on a prototype viewer that would allow users to display and search the integrated XBRL tagging while viewing the familiar HTML view of the financial statements.  In short, then, SEC staff are committed to improving the availability of financial information through the presentation and analysis of structured data.  

This is another important and serious step forward.  Inline will eliminate some of the data quality issues that have arisen with respect to financial statements submitted in an XBRL format.  In particular, Inline will eliminate the problem of discrepencies between the html and XBRL versions of the finanical statements.  It will not solve the problem of excessive use of custom tags and other issues associated with quality but it represents an important step forward in increasing the usability of tagged data. 


The SEC and Structured Data (Part 1)

The SEC collects massive amounts of data. Much of the data is submitted in html, a format that is difficult to search. Ten years or so ago, the SEC started to require the filing of some information in an interactive format. The format permitted analysis of large amounts of data through the use of "tools" (software).   

The roll out of structured data engendered significant criticism. The requirement that financial statements be submitted in an xbrl format was criticized as the imposition of an expense with little value. Indeed, the House has adopted a bill that would eliminate tagging for emerging growth companies. See HR 5405

Nonetheless, recent developments suggest that the Commission is returning to, and promoting the use of, structured data.  In 2012, the Commission proposed a rule requiring disclosure by resource extraction issuers that had to be filed using XBRL.  See Exchange Act Release No. 67717 (August 22, 2012).  The decision was not a new found interest in data tagging but a result of congressional command.  See Section 1504of Dodd Frank (“The rules issued under subparagraph (A) shall require that the information included in the annual report of a resource extraction issuer be submitted in an interactive data format.”).   Indeed, a contemporaneous rulemaking concerning conflict minerals did not provide that the newly created form would be tagged.     

Nonetheless, by 2013, much stronger evidence of a shift in the Commission’s position began to take shape. First, the agency announced, without notice and comment rulemaking, that Forms 13F would be required to be filed using an online form and filers would be required to “construct their Information Table according to the EDGAR XML Technical Specification.”   

Added impetus was provided by the recommendation of the SEC’s Investor Advisory Committee. In July 2013, the IAC recommended that the Commission adopt a “Culture of Smart Disclosure,” something designed to promote the “collection, standardization, and retrieval of data filed with the SEC using machine-readable data tagging formats.” The rule proposal that year for Regulation A+ and crowdfunding both include forms that would, if adopted, be tagged. Regulation AB likewise required the disclosure of certain information in a machine readable format.

Perhaps the most interesting addition was the speech by Mark Flannery, the recently appointed chief economist and director of DERA. See The Commission’s Production and Use of Structured Data, Data Transparency Coalition’s Fall Policy Conference, Washington, DC, Sept. 30, 2014. The talk emphasized the Commission’s commitment to making data “useable” by the public. See Id.  (“Making useable data available to the public is a key function of many of the Commission’s disclosure rules, and one of the strategies identified in the Commission’s Strategic Plan.”). 

He confirmed that the requirement of machine-readable formats for financial disclosures had become “a routine part of the rulemaking process.” Nothing was automatic. Future endeavors were to consider the appropriateness of tagging (“anticipating what information would be most useful to investors”), the proper format (“Deciding on the right data format involves many considerations, including the complexity of the financial information, need for validation of the reported elements, and the availability of pre-existing industry standards”) and the need to “avoid unnecessary implementation challenges.” 

The speech also discussed a sore spot with respect to structured data, particularly in connection with financial statements: data quality. As the speech pointed out: “Unnecessarily high usage of custom tags by a filer can therefore impair certain financial analyses,” also noting that the “Commission staff is aware" of the issue. Indeed, the speech noted that DERA would continue, “where appropriate,” to “work closely with the Division of Corporation Finance to provide guidance to filers based on these observations.” This looked to be a warning that the DERA/CorpFin partnership could yield additional letters like the CFO Letter concerning XBRL deficiencies, issued in July 2014. 

The speech also set out in specific terms what could be expected from the Agency:   

  • Hence, expect to see more staff observations and updates of filer practices posted on the SEC website.  DERA staff will continue its outreach to corporate filers through seminars, webinars, conferences, and other educational programs. DERA staff are also exploring ways to make aggregated XBRL data available to investors and financial researchers so that they can more easily access and analyze the financial information reported through XBRL submissions. 

The speech, therefore, suggests significant progress toward the goals of increasing the use of structured data and ensuring the quality of the data received by the SEC. The partnership between DERA and CorpFin will provide additional impetus for progress and will reduce the concern that decisions are made in a silo. It is strong movement in the right direction.


SEC v. Cole: Failure to Cooperate with Court Orders

In SEC v. Cole, No. 12-cv-8167 (RJS), 2014 BL 263123 (S.D.N.Y. Sept. 22, 2014), the United States District Court for the Southern District of New York granted the Securities and Exchange Commission’s (“SEC”) motion for relief against Defendants Lee Cole and Linden Boyne (“Defendants”).

The SEC alleged that Defendants, among other things, “lied to the investing public” and “secretly funnel[ed] millions of shares” to certain entities they controlled. Their actions were alleged to have violated several Sections of the Securities Act of 1933 and the Securities Exchange Act of 1934. 

The court entered default judgment against Defendants for failure to comply with five court orders. Notably, Defendants failed to: appear for a deposition, respond to sanctions, or make an appearance during the motion for default judgment. Hence, on November 8, 2013, the court entered default judgment against Defendants.

Unless vacated, a default judgment is deemed “final.” The factual allegations in the complaint are treated as true “except those relating to damages.” Following the determination, the SEC filed a motion seeking (1)  disgorgement, (2) civil penalties, (3) permanent injunctions, (4) a bar from serving as officers or directors of any public company, and (5) a bar from participating in any activities involving the offer of penny stocks.

First, the SEC requested Defendants to disgorge their “ill-gotten gains” and pay prejudgment interest on any monies they had illegally obtained. The court applied a two-part burden-shifting framework to determine the amount of disgorgement. First, the SEC had to show that its calculations were reasonably calculated to the amount of Defendants’ unjust gains. The burden of proof then shifted to the Defendants to show that the SEC’s estimates were “inaccurate, or that some of the gains were not the result of wrongdoing.” Defendants were unable to refute the SEC’s proposed disgorgement figures. Thus, the court found Defendants jointly and severally liable for a total of $14,670,750.99.

Second, the SEC argued that each Defendant should pay civil penalties. Courts may impose civil fines on Defendants for violations of 15 U.S.C. §§ 77t(d)(2) (the Securities Act) and 78u(d)(3)(B) (the Exchange Act). These statutes impose a tiered system of penalties. As the court noted:  “The egregiousness of their conduct and lack of cooperation with the Court warrant a severe third-tier civil penalty.” Thus, the court imposed $7,500,000 in civil penalties for each Defendant.

Third, the SEC sought to permanently enjoin Defendants from (1) violating the securities laws, (2) serving as officers or directors of any public company, and (3) participating in any activities involving the offer of penny stocks.

To enjoin Defendants from violating the securities laws, a court considers whether the defendant has violated the securities laws and there is a “reasonable likelihood that the wrong will be repeated.” Given the lack of care Defendants used, even after the SEC brought its allegations, the court found a permanent injunction was appropriate. 

Fourth, the SEC sought an officer and director bar. To prohibit Defendants from serving as officers or directors of any public company, the court must consider: “(1) the egregiousness of the underlying securities law violation; (2) the defendant’s repeat offender status; (3) the defendant’s role or position when he engaged in the fraud; (4) the defendant’s degree of scienter; (5) the defendant’s economic stake in the violation; and (6) the likelihood that misconduct will recur.” Here, the court determined Defendants' actions required a complete bar.

Fifth, the SEC sought a penny stock bar. The court’s analysis to merit a penny stock bar “essentially mirrors that for imposing an officer-or-director bar.” Therefore, the court also enjoined Defendants from participating in any activities involving penny stocks.

Accordingly, the United States District Court for the Southern District of New York granted the SEC’s motion for penalties and remedies in its entirety.

The primary materials for this case may be found on the DU Corporate Governance website. 


The Shareholder Protection Act of 2013: Another Invisible Initiative

This post is in continuation of a series of posts that address rulemaking and shareholder disclosure after Citizens United.

On April 25, 2013, Congressman Michael E. Capauano re-introduced the Shareholder Protection Act of 2013, H.R. 1734, (“Act”) to the United States House of Representatives, which would amend the Exchange Act to require: (1) a majority vote of shareholder authorization prior to corporate political expenditures; (2) a Board of Directors vote authorizing any expenditure over $50,000; and, (3) a quarterly disclosure of the corporate expenditures to the shareholders, the Securities and Exchange Commission (“SEC”), and the public, with significant expenditures being disclosed on-line within 48 hours.

Congressman Capuano first filed the Act in 2010 in response to the then recent Supreme Court opinion in Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010). The Court noted that “Government may regulate corporate political speech through disclaimer and disclosure requirements” and that today’s advanced technology would allow prompt disclosure to shareholders and the public. Prompt disclosure, in turn, would facilitate the exercise of control over the expenditures by shareholders.

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “ ‘in the pocket’ of so-called moneyed interests.” Disclosure would, therefore, provide transparency and facilitate accountability to shareholders. 

According to a press release, Congressman Capuano supported the Act because he believed the decision in Citizens United gave corporations an “outsized voice in the political process.” Senator Robert Menendez also supported the Act, stating “[e]nough is enough. Individual citizens should determine the outcome of our elections, not multi-billion-dollar corporate interests, or worse, a foreign government, so it’s time we pass this legislation to give shareholders a voice over how their corporate dollars are spent on elections.” Thirty-six House Representatives, comprised entirely of Democrats, co-sponsored the Act. 

In addition to congressional support, a coalition letter was submitted, expressing concern not only for shareholders and the public, but also for the electoral system. The letter noted that unregulated corporate political spending would foster more negative attack ads, compounding the present public cynicism associated with elections. 

Although the Act was referred to the House Committee on Financial Services (“Committee”) the same day it was introduced, the Committee has not proceeded with the Act. At this juncture, it seems highly unlikely that Congress will enact the Act. In fact, gives it a 0% chance of being enacted.